/ Opinions / The coronation of the bureaucratic state

The coronation of the bureaucratic state

May 15, 2020

For years now, in the pages of this newspaper, we have warned about the dangers of the bureaucratic state. 

For a few generations, pushed aggressively by Democrats and unions, and barely resisted by Republicans, government bureaucracies at all levels have gained ever more power, and exponentially so. Over time, legislatures, not to mention the federal and state constitutions, have become increasingly irrelevant.

To sum it up, the bureaucracy rules, with its rules.

Even before the current pandemic, bureaucracies independently regulated and controlled significant portions of everyday life, from Internet protocols to nutrition standards to dust on farms to the use of puddles and ponds on private property to urban and rural development and highway access. 

In some states, bureaucracies have tried to regulate the amount of water you can use to shower, not to mention the size of the sodas we drink. And if a legislature writes laws that don’t fit the bureaucratic agenda, agencies simply write rules to overturn them, a mostly infallible exercise given passive rule review processes. 

President Barack Obama greatly accelerated the rise of administrative rule in America, and Hillary Clinton was supposed to complete our transformation from a democratic republic to a bureaucratic collectivist state.

Of course, Donald Trump came along to make sure that didn’t happen. He upset the narrative big time, and he was backed up by aggressive Republican lawmakers on the state and local level who passed various measures to rein in the administrative state, including here in Wisconsin.

It all seemed too good to be true, and perhaps it was. For no one was prepared for what was about to happen when we first heard about the COVID-19 virus over in Wuhan, China.

Nobody dreamed it would make its way here, much less have the impact it has had. And no one was prepared for the almost immediate lockdown of the entire nation and the sweeping suspension of civil liberties in the name of protecting public health.

While various suspensions of our rights haven’t been applied uniformly — there’s different strokes for different totalitarian folks — our overall constellation of constitutional protections has been broadly eroded in one way or another across the entire land.

We have seen governments take away constitutional rights to assemble and worship. We have seen governments take away the right to travel freely. We have seen governments take away the right to speedy jury trials. We have seen government officials confer upon themselves the power to determine what businesses are essential and nonessential, and what activities are permitted or banned. 

We have seen governments proclaim the ability to haul us from our homes in the name of fighting a communicable disease. We have seen government officials lock up law-abiding citizens for daring not to do what the government told them to do, and we have seen government officials turn loose imprisoned criminals into the streets. All in the name of public safety.

Simply put, and let’s be honest, this is not the United States of America. The constitution no longer governs; instead, the state rules.

Worst of all, the penultimate outcome appears to be a vast transfer of raw and ironclad power to a massive government bureaucracy that has been preparing for this for two or more generations. Governors everywhere are yielding the wand of power to “public health experts,” to their administrative allies in other agencies, and to other assorted tinpot experts who know how to live our lives better than we do.

The problem is, while any suspension of constitutional rights is unacceptable and lethal, this empowerment of the bureaucracy over elected officials makes it ever more likely that those rights will never return.

In Wisconsin, Andrea Palm, the unconfirmed secretary of the Department of Health Services (DHS), has become the de facto governor now that Tony Evers’ state of emergency has ended. Her emergency power rolls on, at least until the state Supreme Court says it doesn’t, if it ever says such a thing.

Out in California, another interim and unelected bureaucrat health officer, Erica Pan of Alameda County, has single-handedly tried to shut down Elon Musk’s Tesla operations, though under state standards the factory could operate. Musk opened the plant anyway and dared the county to arrest him.

These scenarios are playing out across the country. 

To be sure, as lockdown liberals like to argue, these unelected bureaucrats are appointed by elected officials. Andrea Palm’s power may appear to be greater than that of the governor, but she serves at the pleasure of that governor and will toe the line he wishes her to toe. Ditto for Erica Pan on the county level, and for others.

That’s all true, but it misses the point. The danger isn’t that some power-hungry agency chieftains will defy elected officials and declare martial law; the danger is bestowing legitimacy on bureaucrats in ways that confer broad authority to their whole agencies, and inevitably to lower-level bureaucrats, which they can then manipulate in hostile environments — meaning when future elected officials are hostile to their bureaucratic agenda.

In such times, career civil service partisans won’t try to assert brazen authority but will use the subterfuge of the bureaucratic maze to construct and implement rules and emergency rules, policy guidances, funding conditions, and more to subvert the will of elected officials.

We’ve seen all this before with the Department of Natural Resources under Gov. Jim Doyle. In the 1990s and 2000s, DNR officials wrapped themselves in the administrative state, and had legitimacy bestowed upon them via fawning courts and the Public Trust Doctrine that proclaimed the agency to be the great protector of natural resources.

Those bureaucrats then misused the credibility given to them and used their rule books to destroy the property rights and injure the economic lives of many innocent people.

The same kind of power — and actually a far greater power — is being conferred on DHS and other bureaucrats these days as they are proclaimed by Democratic governors, the media, and some courts as the protectors of public health, though most are not doctors or scientists, and most of their justifications are supported with little or no valid evidence.

If these bureaucrats’ scientific validity and political legitimacy are not challenged right now, we will have ceded more power than ever before to the bureaucratic state. We may never get much of it back.

Unfortunately, that’s a tough challenge. Bureaucrats are protected by civil service laws — agency heads may come and go but their underlings will stay forever — by still strong passive review processes that make it difficult for legislatures to challenge rules that subvert laws and legislative intent, and by the natural advantage that career bureaucrats have when it comes to knowing how the back alleys of the administrative state work.

Their official legitimacy makes them virtually invincible.

But does Andrea Palm really know what’s good for public health, or does she just know what’s good for the public health bureaucracy?

As we sit at home these weeks, we are literally watching as a new administrative power unfolds before our eyes. It is the very coronation — or should we say covidonation — of the bureaucratic state.

We must not let the crowning take place.

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